MARYLAND STATE BOARD OF EDUCATION JANIS LINK SARTUCCI, ET AL.

APPELLANTS v. MONTGOMERY COUNTY BOARD OF EDUCATION,

RESPONDENT * * * * * * * * * * *

MEMORANDUM IN SUPPORT OF COUNTY BOARD'S RESPONSE AND MOTION TO DISMISS

The Board of Education of Montgomery County ("County Board"), Respondent, submits the following memorandum in support of its Response and Motion to Dismiss:
Introduction This appeal purports to be a challenge to the June 16, 2011 action of the County Board granting utility easements at six (6) public school sites to Comcast of Potomac, LLC, a/k/a/

Comcast Cablevision of Maryland, LLC. Appellants' three page letter of appeal dated July 15, 2011 and their recent Opposition do not even address the subject of utility easements and the County Board's right to grant such limited property rights across its real estate. The County Board's actions therefore remain un-rebutted and must be upheld. The vague, unsubstantiated and conclusory allegations contained in the appeal attack the underlying lease agreements, not the easements. The claims are untimely, fail to state a claim, lack merit, and should be dismissed.

Appellants' Opposition and Cross-Motion for Summary Reversal of Respondent's Action simply highlights Petitioners' failure to state a timely claim under the Education Article. Appellants' Cross-Motion for Summary Reversal must be rejected since the appeal procedures of the State Board do not provide for such a procedure.
1. Only one of the Appellants arguably presents facts alleging legal standing.

In their Opposition, Appellants correctly note that to have standing in an administrative appeal a person must show that he/she is aggrieved by the final decision. "In order to be an aggrieved party, a person ordinarily must have an interest such that [he/she] is personally and specifically affected [by the agency's final decision] in a way that is different from the general population." Krista Kurth, et al. v. Montgomery County Board of Education, MSBE OP. No 11 - 38 (2011) at p. 5, citing Sartucci v. Montgomery Board of Education, MSBE OP. No 10 31
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(2010). By their own admission, Appellants only present factual allegations that one of their

members, Appellant Kerchaert, lives close to one of the six (6) named school sites over which the County Board granted a utility easement on June 16, 2011. 1 Even her standing is predicated on an Assessment Board order regarding the location of a cell tower, not on the presence of an easement which was the subject of the County Board decision. So, even this one Appellant
lacks standing insofar as the subject matter of this appeal.

2.

Appellants' argument that the local board lacks authority to lease its real property to a private entity is not properly before the State Board.

The County Board's actions of June 16, 2011, which the Appellants challenge in this appeal, were approvals granting utility easements to a wireless telephone/cable company
(Comcast). Those utility easements were not different from hundreds of other utility easements

She also alleged that she had a child who attended Captain James E. Daly Elementary School, a nearby elementary school.

that the County Board has granted to various utility companies (e.g., BGE, PEPCO, Verizon, Washington Gas Light Company, etc.) over the years, as previously pointed out. Curiously,
however, Appellants' letter of appeal made no mention of the challenged utility easements [see

Respondent's Memorandum in Support of Motion to Dismiss, p. 5] and neither does Appellants' Opposition to the Motion to Dismiss. It is patently obvious that Appellants are trying to use the June 16, 2011, utility casements to bootstrap an attack on the underlying telecommunication leases which were entered into more than three years ago (between 2005
and 2008). Any appeal seeking to challenge those leases as Appellants do, must be rejected as untimely.

Moreover, since the specific actions which Appellants challenge in this appeal
are the utility easements approved on June 16, 2011, the only issue before the State Board is

whether the County Board's approval of such utility easements was arbitrary and unreasonable or illegal. Appellants bear the burden of proving either arbitrariness or illegality of the utility easements, but they have made no such showing, preferring to belatedly address an entirely different topic. The County Board granted utility easements across its property, as it has done

before to telephone, electric companies, water companies, and other private concerns. There
was nothing illegal in the action of the County Board on June 16, 2011. On its face, Appellants
challenge of the utility easements must fail. 3. If the State Board examines the underlying telecommunication leases authorized by MCPS policy, the County Board's leases are consistent with Maryland law.

By using the June 16 utility easements to bootstrap an attack on the underlying

telecommunication leases, Appellants attempt to argue that the telecommunication leases are
illegal. They base this claim on 4-114 of the Education Article which requires a local board to

hold all school property "in trust for the benefit of the school or school system." They rely on

two attorney general opinions that viewed leases of public school property with disfavor. In one instance, the Attorney General concluded that a local board had doubtful authority to permit the construction and use of a building on school property by a private day care company
for an indeterminate length of time. 2 Noting that the construction of a building by a private corporation for its own use would require a long-term commitment from a local board, 3 the

Attorney General expressed doubt about it. Similarly, in a 2006 opinion, the Attorney General agreed with counsel for the Harford County Board that a 99 year lease of school property to a
private corporation was doubtful based on the School Board's obligation to hold property in

trust for the benefit of the public schools.` Neither legal opinion supports Appellants' radical position that a school board can never lease any property under any circumstances even to facilitate water and electricity to the property. In fact, there is strong legal authority supporting the discretion of a local board to lease property. In 1991, the Attorney General addressed whether the Anne Arundel County Board of Education could lease a portion of school property to a private special education school so that it could construct a building.' The Attorney General concluded that a lease of school property to a non-public educational institution that provides services to special education students, many from Anne Arundel County, "might well be consistent with the local
board's trust obligation." 6 The Attorney General found that such a lease would not violate a

local board's duty to hold property in trust:

76 OP. Att. Gen. 147 (February 1, 1991) 3 Id. at 151 4 91 OP. of Att. Gen. 33 (January 30, 2006) 5 76 Op. of Att. Gen. 190 (July 12, 1991) 6 Id. at 192
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In general, a trustee may lease trust property if the lease is reasonable, considering among other factors, 'the purposes of the trust' and 'the nature of the property and the uses to which it may advantageously be put.' Citing Restatement (Second) of Trusts, 189, comment B (1959).

Consistent with the Attorney General's opinions, considering the "purposes of the trust" and "the nature of the property and the uses to which it advantageously be put," leases to
telephone companies do not per se violate a trustee's obligations. It is surely within the

discretion of a County Board to lease a relatively small portion of school property

(approximately 600 to 800 square feet) to a telephone company for a monthly rental that would result in considerable income benefiting the public school system. Moreover, the lease terms

were relatively short (5 years, plus renewal) and provided for early termination if the lessee failed to perform their contractual obligations. Such use of trust property is consistent with the fiduciary duties expected of a trustee managing real property. 7 Thus, there is no legal support for Appellants' allegations that the leases of school property for cell tower use violated the school trustees' obligations, assuming that the State Board ever reaches that issue. More significantly, the Attorney General has concluded more recently and more
specifically that the current education law gives a county board the authority to lease school

property to a telephone company. In a 2007 letter of advice to a Baltimore County senator, Assistant Attorney General Robert A. Zarnoch, counsel to the General Assembly, advised that the Legislature's 2004 amendment of 4-114 permits a private entity to hold title to public school property if contractually obligated to transfer title back to the county board. See 4114(c)(1). The respected opinion by the Legislature's principal legal counsel bolsters the

See also Bogert, Trusts (6th Ed.) 1987, 101 for discussion of the trustee's duty to make trust property productive
and earn income.

conclusion that such leases with telephone companies are authorized. A copy of the May 30, 2007 letter of advice is attached as Respondent's Exhibit 3. 4. Appellants' argument that the Telecommunications Act of 1996 does not pre-empt Maryland law is misleading and, in any event, is beyond the jurisdiction of the State Board. Appellants correctly quote 704(a) of the TCA and the sections dealing with the preservation of local zoning authority "of a state or local government or instrumentality thereof." However, the quote is misleading because the TCA then limits the regulation by such
state and local governments over "the placement, construction, and modification of personal

wireless service facilities" and prohibits such entities from unreasonably discriminating or adopting procedures that have "the effect of prohibiting the provision of personal wireless services.. ." There is no question that the county board is a governmental entity and qualifies at least as an instrumentality of either the state or local government. Appellants contend that Maryland boards of education are not subject to the requirements of the TCA and that federal law was not intended to apply to public school property. IIowever, Appellants' reliance on the Second Circuit's decision in Sprint Spectrum
v. Mills, 283 F.3 rd 404 (Second Cir. 2002) to support their misleading argument is misplaced.

Appellants cite the decision to argue that the TCA does not prevent a school system from banning cell towers on school property and, therefore, the premise of the local policy was
wrong. Even if the motivation for the local Policy, adopted years ago, was based on an

inaccurate view of the law, it is irrelevant to the validity of the Policy, belatedly attacked in this appeal by the Appellants. The factual background shows that the County Board purposely adopted a telecommunications policy based on its authority to adopt rules and regulations for the conduct 6

and management of the county public schools. ED, Section 4-108. That authorization includes the capacity to manage school property, adopt procedures to evaluate requests to place telecommunications transmission facilities on school property, and delegate to the

superintendent the authority to grant defined and terminable leases for that purpose.
Moreover, the Sprint Spectrum case simply stands for the proposition that the TCA did not prevent the school district from relying on its contract addendum to require a lower level of radio frequency (RF) emissions from the telecommunications facility in order to be permitted on that school district's property. The court ruled that the school district was not attempting to "regulate" personal wireless services, but was merely acting in a proprietary capacity, managing its property and insisting on contract terms it had negotiated. The Court in Sprint Spectrum found that the Ossining New York school district's contractual restriction on RF
emissions was not preempted by the TCA in that specific instance. The decision does not mean

that the TCA will never operate preemptively if a governmental entity adopts policies or procedures that have the effect of "regulating" personal wireless services. 8 Consequently, the Sprint Spectrum case cannot be read as controlling the telecommunication leases entered by the County Board. Moreover, there is no reason for the State Board to venture into questions concerning federal pre-emption and opine on legal matters beyond the State Board's jurisdiction. 5. Appellants' claim that Policy ECN violates Montgomery County law and the mandatory referral process must be dismissed as not within the jurisdiction of the State Board.

In New York SMSA Ltd. Partnership v. Town of Clarkstown, 612 F.3d 97 (2010) the federal court held that a town ordinance preferring "alternate technologies" for wireless telecommunications facilities was impliedly pre8

empted by the ICA. There is no presumption that state/local regulations and policies will not be pre-empted.

Appellants veer further off course when they argue that a local Board Policy ECN, Telecommunication Transmission Facilities, conflicts with Montgomery County land use laws and the mandatory referral process.`? They raise irrelevant, unconnected arguments when they refer to a special exception matter involving a telecommunication company's request to place a cell tower at Sligo Middle School. None of the arguments have any relevance to the County Board's actions at its June 16, 2011 meeting granting utility easements, and, in any event, the issues are beyond the jurisdiction of the State Board. 6. Appellants' Cross Motion for Summary Reversal should be denied.
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Appellants answered Respondent's Motion to Dismiss by submitting what it called an "Opposition to Respondent's Motion to Dismiss and Cross-Motion for Summary Reversal of Respondent's Action." COMAR 13A.01.05.03 does not authorize the filing of a motion for
summary reversal. However, even if a type of summary judgment motion were possible, Appellants have not demonstrated they are entitled to judgment as a matter of law. Appellants have presented no legal authority holding that the County Board acted arbitrarily or illegally in

granting utility easements to Comcast at the June 16, 2011 public meeting. The issues raised by Appellants are either irrelevant to the action being challenged (easements) or are outside the scope of this appeal. For these reasons, Appellants' Cross-Motion should be denied.

Article 28, 7-112 requires that projects for public improvements in the capital planning district must undergo a mandatory referral process before the Maryland National Capital Park and Planning Commission.
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CONCLUSION
Appellants have no factual or legal basis to challenge the June 16 County Board approval of utility easements at several properties it owns and holds in trust. Appellants

present no facts or arguments that the grant of these easements was improper or illegal.
Appellants' vague, unsubstantiated, and unwarranted conclusions attacking the underlying telecommunications leases fail to state a claim, and certainly fail to state a timely claim.

Appellants have not shown by a preponderance of evidence that the County Board acted
arbitrarily or illegally. Attempts to portray the County Board's Telecommunications Policy as

violating County law or conflicting with provisions requiring mandatory referral have absolutely no merit or relevance. Moreover, adjudication of such claims is not within the jurisdiction of the State Board. For all of these reasons and those stated in the previously filed motion, the County
Board's Motion to Dismiss should be granted and Appellants' Appeal and Cross-Motion for Reversal should be denied.

Respectfully Submitted, Jud S. Bresler

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Michael S. Molinaro CARNEY, KELEHAN, BRESLER, BENNETT & SCHERR, LLP 10715 Charter Drive, Suite 200 Columbia, Maryland 21044
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